The recent publication of a white paper summarizing the Obama Administration’s legal justification for killing American citizens believed to be leaders of al Q’aeda or al Q’aeda-associated forces has led to intensified scrutiny of the Administration’s tactics in a global conflict that the President inherited from his predecessors.

As one would expect, most of the criticism of the Obama targeted-killing program has come from the left. Civil libertarians worry that without judicial supervision, the targeted killing program assumes too much power for the executive. And with the public in the dark about the program’s details, liberal Democrats and even some libertarian Republicans say that they have insufficient grounds to trust the executive branch’s procedures for compiling the “kill list.”

But the President is also taking heat from the right. Earlier this month, UC-Berkeley Law Professor and former George W. Bush Administration lawyer John Yoo wrote in The Wall Street Journal that the white paper reflects weakness on the part of President Obama. If we are at war with al Q’aeda, Yoo reasons, then we are entitled to kill the enemy, even if some of them are Americans. In this view, the white paper’s invocation of the Fourth and Fifth Amendment rights of American citizens reflects the Obama Administration’s misguided insistence on seeing the fight against al Q’aeda in terms of domestic law enforcement, rather than seeing it as war.

Professor Yoo is not the first person to notice that the Obama Administration’s justification for targeted killing mixes the paradigms of war and crime. For example, I noted just this fact in October 2011, when The New York Times first reported on the existence of an Office of Legal Counsel memorandum that apparently contained the same key legal moves as the white paper did. However, unlike Professor Yoo, I applaud the Obama Administration’s effort to fashion a policy that complies with both the international law of war and the U.S. Constitution.

American citizens fighting for al Q’aeda and its affiliates outside of active war zones fall into an intermediate category between war and crime. It is therefore entirely appropriate for the Administration to consider legal restrictions from both paradigms.

Accordingly, in my view, Professor Yoo’s critique of President Obama’s drone policy as too soft misses the mark. Yet towards the end of his Wall Street Journal Op-Ed, Professor Yoo makes an arresting claim that cannot be readily dismissed. In essence, he also criticizes the drone policy as too forceful.

Professor Yoo accuses the President of relying on drone strikes to avoid the difficult questions that, he says, he and his superiors confronted when they captured and interrogated suspected terrorists. But, Professor Yoo goes on, President Obama’s “deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.”

Is Professor Yoo right? Is the Obama program of targeted killings worse than the Bush program of torture (or what Professor Yoo euphemistically calls “tough methods” of interrogation)?

Killing Is Legal but Torture Is Not

Writing in last week’s New Yorker, journalist Jane Mayer acknowledged the “common sense” in Professor Yoo’s criticism. After all, she wrote, “it’s better to be alive with no fingernails than dead. From the standpoint of the victim, [Yoo] may be right that torture is preferable to death.” But, Mayer went on to note, this view overlooks the standpoint of the law. Killing combatants during wartime is legal, whereas torture of anybody at any time is not.

To be sure, Professor Yoo and other former Bush Administration apologists insist that waterboarding and other “tough methods” that they authorized are not torture, but notwithstanding their sophistry, that claim seems plainly incompatible with the definition of torture in the United Nations Convention, ratified by the United States in 1994. It defines torture in relevant part as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . . .” Only a sophist could deny that waterboarding, slamming prisoners into walls, and the other “tough methods” approved by then-lawyer Yoo satisfy that definition.

In any event, the UN Convention forbids not only torture but also other “cruel, inhuman or degrading treatment of prisoners.” In his capacity as a Bush Justice Department lawyer, Professor Yoo argued that this limitation might cover some “tough” techniques that were not, in his view, sufficiently severe to constitute torture. Nonetheless, he relied on an imaginative theory of Presidential power to argue that if that were indeed the case, then the limit would be unconstitutional.

That view has been widely rejected, including by the later Bush Administration itself. Thus, Mayer is correct in noting the important legal distinction between the torture of captives and the killing of combatants.

Yet, to recall the Bush Administration’s views about executive power in fighting Al Q’aeda is to call to mind an uncomfortable parallel with the Obama targeted-killing program. After setting forth its substantive constitutional analysis with regard to that program, the Obama Administration white paper adds that “there exists no appropriate judicial forum to evaluate these constitutional considerations.” The Bush Administration made the very same point, citing the very same wartime exigencies, in arguing in the early 2000s that judicial review of its detention policies was foreclosed. In a series of cases, the Supreme Court disagreed.

Of course, the different circumstances surrounding targeted killings could mean that the Obama Administration position is right where the Bush Administration position was wrong. Nonetheless, we should not simply assume that an executive determination that its wartime program is incompatible with judicial review will be accepted by the judiciary, should a case properly make it into court.

Is Torture Morally Worse Than Killing?

In any event, to focus solely on the legal questions is to miss an important part of Professor Yoo’s challenge. The question is also one of morality: If it is morally permissible to kill enemy combatants, then why is it morally impermissible to inflict less harm on them by capturing and then torturing them?

The best answer to that question is that even though torture may sometimes be preferable to death, it violates a distinct moral principle—the so-called categorical imperative identified by Immanuel Kant: Treat people as ends, not means.

When the government kills an enemy combatant or operational leader, it does not do so to use that enemy but to incapacitate him. That is why the law of war forbids killing enemy combatants who have surrendered. It is permissible to kill to incapacitate an enemy but not to kill a now-toothless surrendering enemy simply for the sake of killing him.

Torture serves a different purpose, because any prisoner who can be subject to torture has already been incapacitated; he or she can do no more harm. Typically, the point of the torture is to use the captive as a means of obtaining information.

How persuasive is that distinction? It depends on how narrowly or broadly one focuses. Some people say that torture also aims at incapacitation—not of the particular captive, but of his comrades in arms, or of a threat that he has set in motion. Torture of a terrorist so that he reveals the location of a “ticking bomb” aims to disarm—that is, to incapacitate—the bomb.

Thus, torture’s defenders say, torture serves the same sorts of ends as killing, and sometimes it does so by inflicting substantially less harm. Indeed, even “targeted” killing often misses its objective or inflicts collateral damage on innocents, causing suffering that, but for the motive of those inflicting it, could be said to be torturous. Do reasons really matter that much?

Conventional morality produces no clear answer. Utilitarians—who define the morality of an action by summing the benefits it will likely produce minus the harms it may cause—tend to think that torture can be justified, at least in rare cases. By contrast, deontologists—who think that actions are right or wrong in themselves—tend to think that the use that torture makes of particular persons puts it beyond the pale. But even then, further subtleties may cause deontologists to divide over the question of just what kind of action torture is, as a 2009 Cardozo Law Review article by my colleague and fellow Verdict columnist Sherry Colb, explores.

Posing the Wrong Questions

In the end, however, Professor Yoo’s claim that the Obama targeted-killing program is worse than the Bush torture program is mostly a distraction from the real issues we face.

There are many legitimate reasons to worry about President Obama’s targeted-killing program, ranging from the inevitable watering down of due process in any purely executive deprivation of life, to the worry that the policy may be counterproductive. Whatever their merits as means of incapacitating enemies who pose an imminent threat, drone strikes hardly win the hearts and minds of the innocent people who live near where the missiles land.

In evaluating the Obama Administration’s targeted killing policy, the real question is “Compared to what?”. Reportedly, President Obama expanded the scope of the drone program during his first term as a means of shrinking the military footprint of the United States around the world. But now, with U.S. troops increasingly coming home, that looks like a false comparison.

The question should not be whether drone strikes are preferable to further U.S. occupation of foreign lands or torture of prisoners, because those options are no longer on the table. The question should, instead, be whether drone strikes are preferable to a foreign policy that relies chiefly on diplomacy, using military force only as a last resort and when strictly necessary for national defense.

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